Thursday, December 21, 2006

The work of Morton Horwitz, Harvard Law School, will be the focus of the Legal History Section Program at the Association of American Law Schoolsmeeting in Washington, D.C., on January 5. Registration is required to attend the panel. Registration information is here.

The Scholarship of Morton Horwitz in Law and HistoryModerator: Joseph Gordon Hylton, Marquette University Law SchoolSpeakers: Robert W. Gordon, Yale Law SchoolLaura Kalman, Professor, University of California Santa Barbara, Santa Barbara, CaliforniaWilliam Michael Treanor, Fordham University School of LawDalia Tsuk, The George Washington University Law SchoolRespondent: Morton J. Horwitz, Harvard Law School

This panel will examine Professor Horwitz’s influence on modern American legal historiography. In 1977, Horwitz published his groundbreaking first book, The Transformation of American Law, 1780-1850, one of the most important and controversial books in the field of American legal history. This book challenged the so-called ‘consensus school,’ which minimized the role of class conflict in legal history and in American history more broadly. Professor Horwitz’s The Transformation of American Law, 1870-1960: The Crisis of Legal Orthodoxy was both a sequel and a break from the first book. In recent years, Professor Horwitz has turned to the history of the Warren Court, and his work continues to be a tremendous scholarly influence as well as the subject of continuing criticism. Professor Horwitz will provide a brief response at the panel’s conclusion.

There are other panels of interest to legal historians. Some examples follow. The entire program is on-line here. (And don't neglect to register, here. They check for conference badges at each panel.)

Blogging note: I will not be able to blog from the meeting, since I will be at the American Historical Association annual meeting, unfortunately the same dates. If anyone attending the AALS would like to e-mail me reports for the blog, you can find my e-mail here.

New Law and Humanities Approaches to IdentityModerator: Frank Rudy Cooper, Suffolk University Law SchoolSpeakers: Kate Nace Day, Suffolk University Law SchoolLolita Kay Buckner Inniss, Cleveland State University Cleveland-Marshall College of Law Margaret E. Montoya, University of New Mexico School of LawReginald C. Oh, Texas Wesleyan University School of LawChristine Zuni Cruz, University of New Mexico School of Law

This panel explores the meaning of identity through methods that synthesize insights from both law and the humanities.Professors Cruz and Montoya will discuss the theories behind their production of a performance piece on the history of treatment of indigenous and chicana women in the Southwest. Professor Day will discuss the theories behind her use of literature to get law students to engage with feminism. Professor Buckner Innis will discuss a critical legal rhetoric approach to the recent African-American Slave Descendants Litigation decision on reparations. Professor Oh will describe a critical geography approach to the construction of the term “the ghetto.”

Secrecy in the Name of SecurityModerator: Alan E. Garfield, Widener University School of LawSpeakers: Eric B. Easton, University of Baltimore School of LawDaniel Ellsberg, Author and Former U.S. Department of State Official, Kensington, CaliforniaBarry P. Mc Donald, Pepperdine University School of LawGeoffrey R. Stone, The University of Chicago The Law School

When should the government be able to keep information secret in the name of national security? Who should decide when such confidentiality is warranted, and what checks should exist to ensure that these decisions do not overreach? How should the law treat those who disclose confidential information in the interest of keeping the public informed? What protection, if any, should the press have for publishing confidential information and for preserving the anonymity of sources who give them confidential information?

These and other issues will be discussed by Mr. Ellsberg, who in 1971 delivered copies of the Pentagon Papers to the New York Times and the Washington Post and is the author of Secrets: A Memoir of Vietnam and the Pentagon Papers; Professor Easton, co-author of an article with Dr. Martin Halstuk of Pennsylvania State University about the application of the Freedom of Information Act to the CIA; Professor McDonald, author of articles about the scope of First Amendment protection for information gathering, including the right of the public or press to access government information; and Professor Stone, author of Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism.

Friday, January 68:30 - 10:15 a.m.AALS Open Source Program (A program competitively selected by the AALS Committee on Open Source Programs)Coolidge, Mezzanine Level, Marriott Wardman Park HotelThe 50th Anniversary of “12 Angry Men”(Program to be published in Chicago-Kent Law Review)

Moderator: Nancy S. Marder, Chicago-Kent College of Law Illinois Institute of TechnologySpeakers: Robert P. Burns, Northwestern University School of LawValerie P. Hans, Cornell Law SchoolBruce L. Hay, Harvard Law SchoolStephan Landsman, DePaul University College of LawLawrence M. Solan, Brooklyn Law School

The year 2007 will mark the 50th anniversary of the movie 12 Angry Men. This movie offers the only portrayal of an active jury in the history of American film-making. The movie has withstood the test of time, not only because of the great ensemble cast, but also because it portrays the jury as a group of twelve ordinary men who learn in the course of their deliberations what it means to be a jury. The learning process is not an easy one. The deliberations are marked by clashing personalities and marred by prejudice. Yet, the jurors, led by the persevering and patient Henry Fonda, eventually learn to put aside prejudice and personal enmity, to piece together the evidence with a critical eye, and to deliver a verdict of not-guilty based on their reasonable doubt.

When this movie was released fifty years ago, audiences greeted it with little enthusiasm. Yet, the movie has endured and is now recognized as a classic. Even though the movie offers a fictional account, it provides a rare glimpse into jury deliberations. It continues to raise such questions as: Is this how a jury should deliberate? Is Henry Fonda an ideal juror? Is this fictional jury deliberation consistent with actual jury deliberations now that we have fifty years of empirical studies? The panel will address these and other questions.

8:30 - 10:15 a.m.Section on Constitutional LawMarriott Salon I, Lobby Level, Marriott Wardman Park HotelThe Bush Presidency and the Constitution Moderator: Stephen M. Griffin, Tulane University School of LawSpeakers: Curtis A. Bradley, Duke University School of LawNeal K. Katyal, Georgetown University Law CenterSaikrishna B. Prakash, University of San Diego School of LawKim Lane Scheppele, University of Pennsylvania Law School and Woodrow Wilson School Princeton University

It is not too early to reflect on the meaning of the Bush presidency for the Constitution. The last section program related to this topic in January 2002 occurred in the aftermath of the September 11, 2001 terrorist attacks, the executive order establishing military commissions, and the war in Afghanistan. With the benefit of hindsight, we can see that the full implications of the Bush presidency for our constitutional order lay in the future. The legal and constitutional meaning of the September 2001 “Authorization to Use Military Force” and the subsequent “Global War on Terror,” the 2003 Iraq War, the 2004 “torture memo” controversy, the 2005 revelations concerning the National Security Agency and the bypassing of the Foreign Intelligence Surveillance Act have still not been properly digested and understood by constitutional law scholars. In addition, there have been some limited interventions by the federal judiciary and the Supreme Court in the 2004 trilogy of cases headlined by Hamdi v. Rumsfeld, and last Term’s decision in Hamdan v. Rumsfeld.

At the level of theory, the concept of the “unitary executive” was actually debated by Congress during the fall 2005 Supreme Court nominations of Chief Justice Roberts and Justice Alito. It is likely that the meaning of the Bush presidency for constitutional theory goes well beyond this. After 9/11, the Bush presidency was increasingly marked by themes and narratives that expressed a sense that constitutional change had occurred. The idea that 9/11 was inherently a sharp break with the past, that statutes adopted in the 1970s were outmoded, that the experience of World War II, the Korean War, and the Vietnam War were irrelevant all involved a self-conscious attempt to found a new age for constitutional and international relations law. Going forward, the Bush presidency projected an indefinite war on militant Islam, the development of a domestic dimension to the Commander-in-Chief power, and the United States as a theater of war. The panel will attempt to take into consideration all of these elements.

Moderator and Speaker: Paul Schiff Berman, University of Connecticut School of LawSpeakers: Elena Annette Baylis, University of Pittsburgh School of LawSally Engle Merry, New York University School of LawW. Michael Reisman, Yale Law SchoolCarol Ann Weisbrod, University of Connecticut School of Law

Legal pluralists have long noted that “law” cannot be viewed solely as the coercive commands of a sovereign power. Yet, while studies of pluralism have historically tended to focus on religious communities, ethnic enclaves, and the interaction between colonial and indigenous law-making, scholars are increasingly turning to other sites where multiple legal systems interact. Indeed, interest in globalization, with its varied normative centers—international organizations, transnational and international courts, NGOs, social movements, multinational corporations, online communities, industry standards, trade finance bankers, terrorist networks, and the like—promises to make pluralist insights relevant to a new generation of academic inquiry. This panel will take stock of legal pluralism as an interpretive lens and consider possible directions for future scholarship.